Jury Instructions in Products Liability Cases Create
More Debate Than Consensus
By Daniel E. Cummins | March 20, 2018Pennsylvania Law Weekly
With the law of products liability cases continuing to evolve in the post-Tincher era, growing pains are being felt by both the courts and practitioners. In particular, as reported in numerous recent articles in the Pennsylvania Law Weekly and The Legal Intelligencer, the trial courts are faced with conflicting positions from the plaintiff’s bar and the defense bar on the proper language for jury instructions in post-Tincher products cases.
After the Tincher decision was handed down by
the Pennsylvania Supreme Court in 2014, the civil instructions subcommittee of
the Pennsylvania Supreme Court committee for proposed standard jury
instructions drafted suggested standard civil jury instructions for products
liability cases which were then published by the Pennsylvania Bar Institute
(PBI).
The post-Tincher jury instructions drafted by
the subcommittee were quickly criticized by members of the defense bar who felt
that the language in the instructions was not entirely consistent with the law
laid down in Tincher. In a touch of irony, it may be said that members
of the defense bar view these suggested jury instructions on products liability
cases as being defective.
With members of both the plaintiffs bar and the defense bar being so vociferous in their opposing positions on these suggested standard civil jury instructions for products liability claims, and given that the language of some portions of these instructions have been called into question by the recent decision of the Superior Court in Tincher, it may be advisable for the civil instructions subcommittee to go back to the drawing board in an effort to come up with a consensus on such instructions for the benefit of both the courts and the litigants.
A revised set of products liability jury instructions
would not only quiet the debate but, more importantly, would further the
interest of judicial economy by potentially avoiding appeals and, in those
cases that are appealed, possibly avoiding the need for appellate courts to
overturn verdicts on the basis of improper jury instructions utilized by the
trial court.
‘Tincher’ Altered the Law (Somewhat)
Back in 2014, when the Pennsylvania Supreme Court
released its much-anticipated products liability decision in the case of Tincher
v. Omega Flex, the central question before the court was whether the
strict liability analysis of Section 402A of the Reinstatement (Second) of
Torts should be replaced with the analysis contained in the Restatement (Third)
of Torts.
In its 128-page majority opinion, the Pennsylvania
Supreme Court elected to stay with Section 402A of the Restatement (Second) of
Torts but also chose to overrule the prior notable products liability decision
of Azzarello v. Black Brothers, 391 A.2d 1020 (Pa. 1978) and that
court’s negligence/strict liability analysis which had been followed by
Pennsylvania litigators for 36 years.
The prior Azzarello decision and its progeny
were plaintiff-friendly in that those decisions fostered the removal of all
negligence concepts from products liability cases in favor of strict liability
concepts. The Azzarello decision also held that the trial court, and not
the jury, was in charge of evaluating the risk/utility of a defendant’s
product. Under the law set forth in Azzarello, the trial courts were
additionally required to instruct juries that the manufacturer or supplier of a
product was a guarantor of the safety of its product.
The Supreme Court in Tincher expressly
overruled Azzarello and disapproved of that court’s support for a jury
instruction that a “manufacturer is a guarantor of its product.” The Tincher
court formulated an altered standard of review for Pennsylvania products
liability cases that focused on both a “consumer expectation” and a
“risk/utility” definition of a defect.
Under the consumer expectation test, a product may
be found to be in a defective condition if the danger posed by the product is
unknowable and unacceptable to the average or ordinary consumer.
The separate “risk/utility” standard, required the
utilization of a balancing test to weigh the risks and utilities of the
products, as stated in some cases, a cost/benefit analysis.
Under the risk/utility test, a product may be found
to be defective when the probability and seriousness of harm caused by the
product outweighs the burden or cost of taking precautions against the risk.
The risk/utility analysis takes into account a number of many different
factors, commonly known as Wade factors.
A Debate Arises
The stated goal of the civil instructions
subcommittee appointed by the Pennsylvania Supreme Court is to draft clear,
concise instructions that are understandable to citizen jurors, while ensuring
that the proposed instructions reflect the current law and case law.
The current debate between the plaintiffs bar and
the defense bar centers on whether the suggested standard civil jury
instructions pertaining to products liability cases accurately reflect the law
of Tincher. Important portions of these suggested products
liability instructions have been challenged by members of the defense bar as
being inconsistent with the Supreme Court’s analysis and ultimate decision in Tincher.
In an unprecedented move, members of the Pennsylvania Defense Institute even
drafted and published its own recommended products liability jury instructions
in 2016. Since that time, trial courts have been faced with strong
arguments from each side as to the proper content for the jury charge in
products cases.
Areas of Contention
Several areas of contention exists between the
plaintiffs bar and the defense bar on the proper wording of products liability
jury instructions.
While the suggested standard jury charges
published by the PBI do not contain language pertaining to whether a product is
“unreasonably dangerous,” the jury charge published by the defense bar adds
that language. The defense bar also proposes the removal of language from the
subcommittee’s instructions indicating that a product is dangerous if it lacks
any element necessary to make it safe for its intended use as such language is
only supported by the Azzarello decision which, as noted, was overruled.
Perhaps the sharpest area of dispute is the
contention that the PBI’s suggested standard jury instructions maintains
other language that is also consistent with the overruled Azzarello
decision, namely that the product manufacturer or supplier is a guarantor of
the safety of its product. In the jury instructions propounded by the
members of the defense bar, the Azzarello “guarantor” language is not
included.
Some of these areas of contention can now be
addressed in light of the Pennsylvania’s Superior Court’s most recent February
2018, decision issued in the ongoing saga of the Tincher case.Latest Pronouncement
In its recent Tincher decision, the
Pennsylvania Supreme Court confirmed that the inclusion of language in jury
instructions consistent with the law set forth in Azzarello should be
avoided as that decision was overruled by the Pennsylvania Supreme Court in its
2014 decision in Tincher.
The Pennsylvania Superior Court in Tincher
more specifically determined that a new trial was necessary in that case, in
part, because the jury instructions that were provided by the trial gave the
jury an outdated definition of “defect” rooted in the overruled Azzarello
case. The Superior Court noted that the trial court, relying upon the law of Azzarello,
had instructed the trial court that a product is defective if it “lacks any
element needed to make it safe for its intended use.”
The Superior Court ruled in Tincher that “if
an incorrect definition of ‘defect’ under Azzarello calls for a new
trial, an incorrect definition of ‘defect’ under Tincher should call for
the same result.” Given that the trial court gave a charge under the law that
the Pennsylvania Supreme Court explicitly overruled, the Superior Court in Tincher
found this to be a fundamental error on the part of the trial court and, as
such, the case was remanded for a new trial.
The decision by the Superior Court and its
reiteration of the Pennsylvania Supreme Court’s notion that the Azzarello language
has been disapproved supports the notion that, at a minimum, the Azzarello-type
language contained in the PBI published suggested standard jury instructions is
improper and should be revised to mirror the law of Tincher.
Action Needed to Quiet the Debate
The hope remains that members of the defense bar and
the plaintiffs bar can work together with the civil instructions subcommittee
to come to an agreement on the proposed language such that, one day in the not
too distant future, there will be a set of products liability suggested
standard civil jury instructions that litigants can rely upon in
anticipation of trial and that trial court judges can simply read to the jury
just like any other accepted instructions published by the PBI.
With a debate as loud as the one currently going on
between the plaintiffs bar and the defense bar, the suggested standard civil
jury instructions should be revisited, particularly since certain language
contained in these instructions has been called into serious question by the
reasoning in the most recent decision in the Tincher case issued by the
Pennsylvania Superior Court.
Unfortunately, it may be a while before any
revisions may take place. It is likely that there will be a continuing debate
between the plaintiffs bar and the defense bar over whether such changes are
even necessary. If a decision is eventually reached that revisions to the
suggested jury instructions should be made to quiet the debate and conform the
instructions more closely with the law of Tincher and its progeny, it
will then likely take another extended period of time before the subcommittee
can secure a consensus before a revised set of instructions are issued and
published.
And so, in the meantime, given the sharp differences
between plaintiffs attorneys and defense attorneys on the proper language to be
utilized to charge a jury in a products case, along with the fact that a valid
argument exists that that at least portions of the current PBI instructions are
not entirely consistent with post-Tincher law, trial court judges should
be leery of simply reading to the jury the suggested standard civil jury
instructions on this topic as they are currently worded.
In an effort to avoid appellate issues, or worse,
remands of products liability cases for expensive, docket-clogging new trials,
trial court judges might instead order the opposing parties to work out their
differences prior to trial and to stipulate to agreed-upon language for the
charge of the jury.
Where, as is likely, the parties are not able to
come to an agreement on the proposed language for the charge to the jury, trial
court judges should alter the current PBI jury instructions with amendments to
render them consistent the applicable law as may continue to be developed by
the appellate courts in post-Tincher cases.
The current contested PBI instructions are, after
all, only suggested jury instructions that are not binding upon trial
courts of Pennsylvania.
Daniel E. Cummins
is a partner with the Scranton law firm of Foley, Comerford & Cummins. He
focuses his practice on the defense of auto accident, premises liability and
products liability matters. His Tort Talk Blog can be viewed at www.TortTalk.com.
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